That Constitution Thing Again

As if the DC Circuit Court opinion striking down Obama’s recess appointments weren’t enough of a blow to liberals, there is the fun constitutional controversy over presidential elections bubbling up again. Liberals who have long hated the Electoral College and want it abolished in favor of direct popular vote are suddenly . . . in love with the EC just as it is. Why? Because noises by some solid blue states to follow the Maine and Nebraska model of apportioning electoral votes by congressional district instead of winner-take-all would tilt the playing field towards Republicans.

I love the situational ethics of today’s liberals. Right before the 2000 election, when it appeared possible that George W. Bush might win the popular vote but lose the EC to Gore, there were a series of preemptive articles arguing why an EC result against the popular vote result should be respected. Then, when the opposite happened. . . Well, it was rather embarrassing to see the Left turn on a dime and return to their argument from the 1970s that the EC needed to be junked. More recently, the Left has been arguing for a compact among states whereby states would pledge to cast their EC votes for the popular vote winner regardless of how their state votes, apparently afraid that the Bush 2000 scenario might repeat itself. But now with some Republicans agitating for a similar scheme that would surely hurt Democrats’ current geographic EC advantage, the Left is saying, “No—wait, we like the EC just fine the way it is.”

Legal Insurrection’s William Jacobson is all over this story and directs our attention to the outraged gasps of the Human Sound Bite Machine,* Larry Sabato:

As we suspected, it would permit a GOP nominee to capture the White House even while losing the popular vote by many millions. This is not a relatively small Electoral College “misfire” on the order of 1888 or 2000. Instead, it is a corrupt and cynical maneuver to frustrate popular will and put a heavy thumb — the whole hand, in fact — on the scale for future Republican candidates. We do not play presidential politics with a golf handicap awarded to the weaker side.

Republicans face a choice that can best be characterized by personalizing it. A healthy, optimistic party is Reaganesque, convinced that it can win the future by embracing it, and by making a positive case for its philosophy and candidates to all Americans. A party in decline is Nixonian and fears the future; it sees enemies everywhere, feels overwhelmed by electoral trends, and thinks it can win only by cheating, by subverting the system and stacking the deck in its favor. Whose presidency was more successful, Reagan’s or Nixon’s? Which man made the Republican brand more appealing?

As Jacobson points out, the district apportionment scheme is perfectly constitutional, and as such the breathless denunciations from the Left that this would “undermine democracy” (Jacobson’s post gives a number of examples) are silly.

But I’ll add another layer to Jacobson’s analysis. Right now a favorite talking point of the Left is that the current GOP House majority is the result of partisan gerrymandering, as Democrats did indeed receive a larger total House vote than Republicans in the last election, and as such it is conceivable that Sabato is right that a district-based EC would favor Republicans. But who is largely responsible for the current gerrymander? Don’t be so fast to say Republicans following the 2010 blowout election. One major factor has been the Democrat-driven, Voting Rights Act-fueled drive for majority-minority districts, which have the effect of diluting Democratic voting strength overall. To be sure, Republicans have been only too happy to cooperate to maximize minority districts in a way that distributed the GOP vote more widely and hence enables a House majority with a smaller vote.

So in other words, the current House GOP majority represents the Democrats being hoist by their own petard, and if losing the EC partly on account of the same racial politics they’ve embraced for the last several decades, then maybe it’s time they deserve to have this learning experience. Yet, the Supreme Court is poised perhaps to sweep away the racial gerrymandering of the Voting Rights Act this term, in which case the Democratic Party may be spared from their folly. Either way, the Constitution wins.

*If a journalist calls Sabato’s office on election night, you get a phone tree that has messages like, “If you need a Sabato comment on Romney, press 1; if you need a Sabato comment on Obama, press 2; if you need a Sabato comment on the Senate races, press 3,” etc.